Opinion
January 18, 1994
Appeal from the Supreme Court, Bronx County (William J. Drohan, J.).
Following a pretrial hearing and trial in 1976, the defendant was convicted and sentenced for crimes committed during three separate incidents. His court-appointed attorney indicated to the court after sentencing that he would remain with the case for the purpose of appeal. Although a timely notice of appeal was filed, there was no application for poor person relief and, consequently, no order was issued by the Appellate Division for the preparation of the record on appeal. By order of this Court entered August 16, 1990, the defendant's motion for leave to prosecute his appeal as a poor person on the original record was granted and Legal Aid was assigned as counsel.
The defendant moved for summary reversal of his conviction, or, in the alternative, for a reconstruction hearing in July of 1992 on the ground that the rulings by the Supreme Court after a suppression hearing and the minutes of the trial were lost and could not be reproduced. By order entered September 17, 1992, this Court granted the defendant's motion for a reconstruction hearing.
At the hearing, the attorney who represented the defendant at the 1976 trial testified that he did not keep the case file and had no independent recollection of the pretrial hearing or the trial, of the decision of the court on the suppression issues, of any objections made at trial, of the conduct of the prosecutor or of the charge or exceptions to the charge. He did recall that the Judge had made some remarks to the jury that caused them to laugh and that he objected. The Judge who presided at the trial, now retired, submitted a letter stating that he had no recollection of the case. The parties stipulated that the Assistant District Attorney who prosecuted the matter also had no independent recollection of the case. The parties further stipulated that the defendant had no independent recollection of the case.
We agree with the defendant that he is entitled to the summary reversal of his conviction and a new trial since the reconstruction hearing was inadequate to protect his right to appeal (People v. Rivera, 39 N.Y.2d 519). When a transcript is missing, the defendant must generally demonstrate that genuine appealable issues exist and that alternative methods of providing an adequate record are not available (see, People v. Council, 162 A.D.2d 365, lv denied 76 N.Y.2d 984; People v. Santiago, 158 A.D.2d 252; see also, People v. Toro, 186 A.D.2d 603, 604, lv denied 81 N.Y.2d 848; People v. Gonzalez, 110 A.D.2d 592, lv denied 65 N.Y.2d 815). However, where minutes of a trial are lost, the presumption is "less demanding" since a trial presents greater possibilities for appealable issues (People v. Rivera, supra, at 525; cf., People v. Gonzalez, supra).
The entire minutes of this 17 year old trial are missing, as is the decision on the suppression issues. No one, including the defendant, has an independent recollection of the proceedings and neither the attorneys nor the Judge kept notes (cf., People v Glass, 43 N.Y.2d 283; People v. Andino, 183 A.D.2d 834, lv denied 80 N.Y.2d 901). Accordingly, since it was impossible to establish specific appealable and reviewable issues, and since an alternative method of providing an adequate record is unavailable, summary reversal and a new trial are warranted.
Although the defendant failed to seek poor person relief after being advised of his right to appeal the 1976 conviction, and the minutes were not, therefore, transcribed, we decline to deny the motion for summary reversal on this basis. This was his first conviction, and the comments of his attorney after sentencing likely led him to believe that the necessary steps to perfect the appeal were being taken (see, People v. Lacroix, NYLJ, Feb. 28, 1989, at 26, col 6 [2d Dept]); cf., People v. Mirenda, 57 N.Y.2d 261, 267).
Concur — Sullivan, J.P., Carro, Rosenberger, Ross and Asch, JJ.